Welter & Welter
[2021] FedCFamC2F 11
•15 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Welter & Welter [2021] FedCFamC2F 11
File number(s): ADC 2743 of 2017 Judgment of: JUDGE BROWN Date of judgment: 15 September 2021 Catchwords: FAMILY LAW – children – parenting application following final orders made by consent in 2019 – Rice & Asplund argument – discussion of the principles relevant to Rice & Asplund – application for summary dismissal – best interest considerations – how the court determines a child’s best interests – where co-parenting relationship is fractured – application of paramountcy principle – whether there has been a significant change of circumstances since the proceedings have been finalised – discussion of whether there are sufficient circumstances to re-open the proceedings – discussion of the likelihood of a variation to the final orders – where there is a need to protect the child concerned from further litigation – no reasonable prospect of success for the application filed Legislation: Family Law Act 1975 (Cth) Div 12A, Pt VII ss 11F, 60CA, 60CC, 68LA, 65DAA, 69ZN, 69ZQ, 69ZR.
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
Cases cited: CDJ & VAG (1998) 23 Fam LR 755.
Deiter & Deiter [2011] FamCAFC 82.
In the Marriage of Bennett (1990) 14 Fam LR 397.
In the Marriage of McEnearney (1980) FLC 90-866.
King & Finneran [2001] 42 Fam LR 1.
Marsden & Winch (2009) 42 Fam LR 1.
Rice & Asplund [1978] FamCA 84.
SPS & PLS [2008] FamCAFC 16.
Walter & Walter [2016] FamCAFC 56.
Division: Division 2 Family Law Number of paragraphs: 134 Date of hearing: 3 August 2021 Place: Adelaide Counsel for the Applicant The Applicant appearing in person Solicitor for the Respondent Douglas Hoskins Legal Counsel for the Respondent Ms Tinning Solicitor for the Independent Children’s Lawyer Legal Services Commission of South Australia Counsel for the Independent Children’s Lawyer Ms Lee ORDERS
ADC 2743 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WELTER
Applicant
AND: MS WELTER
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
15 SEPTEMBER 2021
UPON NOTING THAT:
1.The orders made by consent dated 12 February 2019 remain in full force and effect.
THE COURT ORDERS THAT:
2.The proceedings and all outstanding applications be dismissed.
3.The appointment of the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Welter & Welter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
This is an application for summary dismissal of a further parenting application, which has been commenced following a final order that concluded earlier proceedings between the parties concerned. The dismissal application is made pursuant to a legal principle, which lawyers refer to as ‘the rule in Rice & Asplund’.[1]
[1] See Rice & Asplund [1978] FamCA 84.
In all matters concerning parenting orders, the best interests of the child concerned is the paramount consideration.[2] As the circumstances of the parties change from time to time, parenting orders are never final in the sense that the Court always retains a jurisdiction to deal with such changed circumstances.
[2] Family Law Act 1975 (Cth) s 60CA.
However, some degree of change is a necessary corollary of life and should not of itself allow final parenting orders to be easily revisited. Otherwise to allow further applications, on the basis of a change of circumstances alone, is likely to be an invitation to never ending litigation.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.[3]
[3] See Rice & Asplund [1978] FamCA 84.
BACKGROUND
Ms Welter (“the mother”) and Mr Welter (“the father”) are the parents of X born 2016 (“X”). The parties met in 2013 and married 2014. They separated, on 1 May 2017, when X was aged approximately 13 months.
The mother commenced proceedings, in relation to both property and parenting arrangements for X, on 6 July 2017. She has been legally represented throughout the majority of the proceedings thereafter. The husband has at times been represented, but for the majority of periods, has represented himself.
From the earliest stages of the case, it has been the mother’s position that the father has been intent on subjecting her to his coercion, both before and after the parties’ separation. As such, the mother outlines he is more focussed on controlling her behaviour than pursuing what is in X’s best interests. In this context, she asserts that his ready recourse to litigation is emblematic of such coercion.
The father’s persistent view of the mother, throughout the proceedings, has been consistently negative. He has asserted that she is a problem drinker and has posed a significant risk to X’s safety because she has shaken and abused the child, as well has having over-medicated him. It remains his view that she is a compromised parent and, as such, his resort to litigation, in order to protect X, can only be regarded as reasonable.
At an early stage of the proceedings, on 26 September 2017, the parties attended a Child Dispute Conference with Family Consultant A in order to provide the Court with some advice, from him, as to the dynamics of the parties’ co-parenting relationship. This referral was made pursuant to section 11F of the Family Law Act 1975 (Cth) (“the Act”).
At this stage, Family Consultant A described the parties’ parental relationship as “at best, non-existent, and at worst, highly toxic and conflicted”. As a consequence, their respective positions, in the proceedings concerning X, were described as being diametrically opposed.
In this context, at this early stage, the mother proposed that X should remain in her primary care and have professionally supervised time, with his father; whilst the father proposed that X should live with him, whilst Ms Welter sorted through her personal issues and X himself should spend time, with his mother, subject to his (Mr Welter’s) supervision.
Clearly, the parties’ circumstances, at the time of the instigation of the proceedings, were far from felicitous, so far as X himself was concerned and for any decision maker called upon to determine the best outcome for the child. The various difficulties can be summarised in the following terms:
·X was an infant and, as such, could only be viewed as a vulnerable child, who was dependent upon his parents to keep him safe;
·The parties’ relationship was relatively brief and they had very little experience of co-parenting X in an intact relationship;
·The parties each portrayed the other as a highly compromised and ineffective parent;
·As such, the parties’ parenting relationship was toxic;
·The parties had absolutely no ability to communicate with one another.
Against this disastrous background, on 30 October 2017, an order was made that X be independently represented in the proceedings pursuant to the provisions of section 68LA of the Act. At present, X’s representative is Ashley Kent, an experienced family lawyer with the Legal Services Commission of South Australia.
Between July of 2017 and February of 2019, the parties were engaged in protracted and bitterly contested litigation before me. In the jargon of case management, I was their Docket Judge. As a consequence, I have been able to observe each of them, but particularly, the father, over a lengthy period of time. It is readily apparent to me that their co-parenting relationship, atrocious at the time of their separation, is no better now and quite possible has become worse.
At separation, X had remained in the care of his mother. Accordingly, in the early stages of the proceedings, it appeared likely that Ms Welter was X’s primary attachment parent. Given X’s tender years, this was an important factor in the Court determining interim parenting arrangements for him.
Throughout the latter period of 2017, orders were made for X to spend periods of daytime care, with his father, in the presence of Mr Welter’s brother or father. Time was further extended in 2018, so that X began to spend a full day, with his father, on each Saturday.
During this period, the case remained fraught with difficulties. As a consequence, it was agreed that Ms B, an experienced psychologist, should compile a Family Assessment Report. Ms B’s report was released to the parties in October 2018, which was shortly prior to the date allocated for the final hearing of their competing applications, which was February 2019.
At the time of Trial, X was spending time with his father on Thursdays from 4.00pm until 7.00pm and Saturdays from 9.00am until 7.00pm. Ms B observed X to be active and energetic, whilst in his mother’s care. For her part, Ms Welter was described by Ms B as providing X with verbal narration, feedback, encouragement and boundaries…putting limits upon his behaviour when required clearly and calmly.
With his father, Ms B described X as engaging positively, in both a verbal and physical sense, with Mr Welter providing the child with frequent praise, encouragement and affection and occasionally some appropriate limit setting.
The mother was described, by Ms B, as presenting in an anxious manner. She reported having been subjected to family violence by the father, which included social isolation, verbal abuse and manipulation of her behaviour. It was the mother’s report to Ms B that she found it difficult to communicate with Mr Welter, whom she alleged made accusations against her in email communications. Significantly, Ms Welter reported:
Feeling powerless, controlled and intimidated by Mr Welter both within the relationship and through the legal process.
Ms B described Mr Welter in the following terms:
Mr Welter presented as articulate in interview, putting forward his arguments logically and reverting to his own topics of concern throughout. He frequently referred to Ms Welter as a deceitfully, difficult person, but also demonstrated knowledge of X and concern for his development and wellbeing. He did not present as anxious or aggressive during interview.
Ms B administered a myriad of personality tests to each of the parties, which are designed to assess negative aspects of personality. Mr Welter’s results indicated that he experienced intense feelings of anger and, on the paranoia scale, an indication that he was likely to be overtly hostile, and have a tendency to be resentful and hold grudges. Ms Welter’s results did not indicate clinical levels of concern.
In the recommendations section of her report, Ms B was not in favour of a shared care regime for X given the issues of family violence raised in the case and what she regarded as a poor co-parenting relationship between the parties. Ms B considered that it would take time to see whether the parties were capable of moving beyond their respective allegations against the other towards a respectful, effective interaction with one another as parents.
In all these circumstances, Ms B’s recommendations can be summarised as follows:
·The current care arrangements remain in place until X was 3 years of age;
·Once X was three, he spend time with his father from child care/kindergarten on Tuesdays returning him to the mother on Wednesdays at 5.00pm. The weekend regime remain unchanged;
·Once X was three and a half, weekend time shift to alternate weekends for longer periods;
·At age four, the time, at weekends be extended again;
·During school holidays, Mr Welter’s time with X gradually increase until there was week about;
·Special occasions be shared equally;
·Major decisions be made consultatively.
Although Ms B made recommendations up until X was aged four, there was no specific recommendation that there be a review of arrangements at this stage. The parties were not able to reach agreement following the release of the report and accordingly each prepared for trial, at which each was represented by experienced counsel, in the mother’s case, Ms Tinning, who still represents her and, in the father’s case, Ms Kari (now Judge Kari).
In the father’s case outline, he specifically rejected any suggestion that there be a review of X’s care arrangements at aged 4 on the basis that this “would create the potential for further disputation and litigation between the parties which the husband seeks to avoid.”
In this context and against expectation, the parties, with the assistance of their lawyers, were able to compromise both property and children’s issues without the necessity of a trial. The final children’s order was an extremely detailed one of some 40 provisions. Among other things, it entailed the parties being conferred with equal shared parental responsibility for X.
More specifically, the consent orders provided for X to continue to live with his mother and for there to be a graduated increase in time until March 2021 (when X would be 5 years of age) when he would begin spending time, with his father, from the conclusion of school Friday until the commencement of school the following Monday, in alternate weeks and, in the other week of each fortnight from the conclusion of school on Tuesday until the commencement of school the following Wednesday. This was a 5/9 night regime per fortnight.
In addition, the orders provided for a sharing of school holidays from the 2021/2022 school holidays onwards. Detailed provisions were also made for relevant special occasions.
In light of the fact that the parties had declined to provide for any review of these orders, it was also agreed that X would attend specified child care centres, kindergarten and primary school. Orders were also made in respect of travel, the issue of a passport for X and injunctions preventing the mother changing her place of residence.
The orders also recognised the ongoing hostility between the parties and, in the light of these difficulties, provided a detailed regime for all handovers of X, which could not occur at either his childcare, pre-school or school. These orders envisaged the use of neutral public spaces and authorised the involvement of intermediaries.
These orders had the imprimatur of the Independent Children’s Lawyer. As a consequence, on 12 February 2019, the appointment of the Independent Children’s Lawyer was discharged. The clear intention of all concerned was the orders in question would be final, notwithstanding that it was axiomatically the case that the parties’ co-parenting relationship was far from optimal.
EVENTS SINCE FINAL ORDERS
On 14 June 2019, the father commenced contravention proceedings alleging that the mother was not facilitating his telephone contact with X. The parties were referred to a Family Dispute Resolution Conference to discuss how any difficulties, in this regard, if any, might be resolved. Mr Welter did not attend the Conference in question. Whether this was an oversight on his part, I cannot now recall.
On 4 October 2019, the mother re-commenced proceedings alleging that controversy had arisen in respect of the pre-school that X should attend. The difficulty related as to which particular pre-school option, at the pre-school agreed upon by the parties, should be utilised. At this stage, it remained the mother’s position that the parties’ co-parenting relationship remained extremely toxic and the father made regrettable comments about her, at handover, referring to her as an alienator in the hearing of X.
Ultimately, notwithstanding the aborted Family Dispute Resolution Conference, on 28 November 2019, I was able to dismiss the Contravention Application and the mother’s Application in respect of pre-school arrangements.
On 10 February 2021, the father filed a further Contravention alleging breaches of the earlier final orders in respect of allegations that the mother had failed to deliver X to him on numerous occasions. He had other criticisms of the mother including that she was not encouraging the child to spend time with him and X himself did not wish to return to his mother’s care after having spent time with him. In this context, Mr Welter alleged significant difficulties at handover.
Concurrently with his Contravention Application, the father filed an Initiating Application, in which, on an interim basis, he sought the reappointment of an Independent Children’s Lawyer for X and that the child attend upon a psychologist so that a report could be prepared in respect of him. In addition, he sought the preparation of a further Family Assessment Report. At this stage, Mr Welter did not propose any final orders indicating that these would be subject to the contents of the prospective Family Assessment Report.
For her part, in a responding Affidavit, the mother refuted any suggestion that she was not facilitating the various orders in question. Rather, she asserted that the father continued to attempt to coerce and control her, particularly at handovers, and was subjecting her to gas lighting.
The usual case management procedures mandate the referral of contravention applications before a Registrar of the Court, who invariably makes an order for a Family Dispute Resolution conference. No doubt in an attempt to reduce the acrimony between the parties and reduce the amount of affidavit material filed in the Court, Registrar McDonald directed that neither party file any further affidavit material without the leave of the Court.
Mr Welter sought to review this order. He and Ms Welter attended the Family Dispute Resolution conference, which was convened by Family Consultant C on 18 March 2021. In the lead up to this meeting, the father indicated to the Court on several occasions that all he wished to achieve with his application was that X obtain some form of therapy to deal with his emotional distress and this engagement be in such a form as to be reportable to the Court.
To Family Consultant C, Mr Welter reported that he was concerned about X’s emotional welfare and believed that the child needed to see a psychologist. The mother indicated that she was open to X having psychological support but claimed that she and the father were incapable of agreeing who should provide this support, notwithstanding the fact that she had provided Mr Welter with a list of two possible therapists – Ms Welter is a social worker by profession. Both parents agreed that their relationship remained toxic and this was not conducive to X’s emotional well-being.
Family Consultant C summarised her impression of the parties relationship in the following terms:
•The mother alleged that there were a few instances of X becoming distressed at handover. She claimed that she had become aware that the father had told X on different occasions that X was missing events such as a ‘play date’ with another child, or a party the father had for his dog, because he was going back to the mother. The mother claimed that the father continued to ‘set up’ situations which created anxiety and distress for X, featured around his return to his mother. The mother stated that this may be remedied by handover which is now occurring at the school.
•The father appeared to be focussed on gathering evidence against the mother, and claimed that he had contacted a psychologist to do an assessment of X, who stated that she would come along to observe handover.
•The father stated that he wanted the Family Consultant to hear X’s distressed reaction to returning to his mother which he had recorded. The Family Consultant told him that this was undesirable and unnecessary, however he began to play the recording, and initially ignored the Family Consultant’s direction to turn the recording off.
•When the Family Consultant questioned the father regarding his response to the mother when she provided him with psychological assessment options, and that he and the mother may decide to act on their mutual agreement for psychological support/assessment, he appeared to become somewhat belligerent, and insisted that he ‘wanted it to go through the court’.
•The father appears to seek to have the child’s matter, and perhaps his ongoing contact with the mother ‘kept alive’ by bringing matters, which were previously resolved by a consent order, back to court.
•The father’s claim that he is not concerned about the issue of time-spending with his child, and that he only wants what is best for his child, appears inconsistent with his apparent unwillingness to communicate in an open and timely way with the mother.
•The mother missed several handovers, and it is unclear if this was a mistake or an attempt to ‘unsettle’ the father.
•The parties relationship appears toxic and as such has consequences which are not in the child’s interest, and they would be wise to minimise their contact with each other, and have handover occur at the child’s school, and to communicate through an electronic parenting application.[4]
[4] See Child Dispute Conference Memorandum dated 22 March 2021 at [27] – [34].
In terms of the best way in which to manage the future direction of the case, Family Consultant C considered that one of X’s parents was playing psychological games which had a negative impact upon X. As such, psychological intervention was recommended for him. However her prognosis for the parties’ future engagement with one another was that it was likely to remain toxic. She did not recommend a further Family Assessment Report at this stage.
Ms Welter responded to the father’s application on 19 April 2021. She proposed that the father attend upon a forensic psychiatrist and a report be obtained. More significantly that X attend upon a nominated therapist to help him deal with anxiety but the therapy involved be non-reportable and occur at the parties’ joint expense.
The one evidentiary issue on which the parties agreed was the X demonstrated signs of emotional distress at handover. Where they disagreed was who was more responsible for driving this distress. At this stage, mid-April of this year, the parties also seemed to agree, at least whilst they were in Court, that something should be done by them to ease X’s distress.
It was in this context, that I elected to re-appoint the Independent Children’s Lawyer to see if his engagement might assist the parties to reach some consensus as to a therapeutic pathway given that, at this stage, Mr Welter was not explicitly wanting to revisit the earlier consent order of February 2019 but rather was focused on getting X the assistance which he asserted the child required. Ms Welter agreed that X did indeed need this assistance and, in this context, had proposed a means for him to access it.
It was Mr Welter’s view that this assistance could only be obtained within the framework of ongoing litigation, although he had not indicated any actual time spending or analogous orders which he sought to obtain through this litigation. On the other hand, on her part, Ms Welter has not suggested a scaling back of the earlier consent order but appeared resigned to the fact that they should continue.
In this context, I was concerned that there were few concrete disputes to be adjudicated by the Court in respect of the application of actual orders. I indicated to the parties that I had no obvious solutions to what were the obvious and apparently irremediable problems in their co-parenting relationship. In effect, I could not order them to be more respectful of one another or that they communicate more empathetically with one another.
In these circumstances, I questioned what would be achieved by keeping the proceedings on foot given the obviously deleterious consequences, for X himself, of keeping his parents on a constant state of ‘lawfare’ with one another. It also seemed to me that Mr Welter, an extremely determined person in my assessment of him, wished to keep the proceedings on foot notwithstanding his limited objectives, in practical terms in respect, of the actual parenting orders sought by him in his initiating application.
This state of affairs also concerned me, particularly given the extensive raft of orders on which the parties had earlier agreed, some two years beforehand, when each had been legally represented and they had recourse to a detailed Family Report, which had delineated a graduated regime for X’s care, which recognised both his changing developmental needs, as he matured and the endemic and chronic conflict between the parties.
In particular, I was concerned that Mr Welter’s application was more reflective of this conflict than any change of circumstances in X’s life and parenting. Although what was then occurring was clearly not calculated to be in X’s best interests, it seemed to me the only agents who were capable of ameliorating his circumstances were the parents themselves.
In general terms, Ms Welter and those advising her could see no utility in the proceedings continuing, particularly given the lack of concrete proposals from Mr Welter to alter the February 2019 orders, which had been largely implemented as envisaged from her perspective, albeit the conflict between the parties remained problematic so far as both she and X were concerned.
In these circumstances, when the case returned to Court on 1 June 2021, she sought the dismissal of Mr Welter’s application pursuant to the rule in Rice & Asplund. Accordingly, this application was set for hearing on 3 August 2021 and each party was directed to file submissions in support of their respective positions.
Ms Welter has filed her submissions. Mr Welter, who has been acting on his own behalf since the final orders were made, filed a further Initiating Application and Affidavit in support in which he seeks that X should live with him, on both a final and interim basis and spend only day time periods, on Saturday, with his mother. This application was filed on 28 July 2021.
The change of circumstances on which Mr Welter apparently relies to support his application can be summarised as follows:
·He has been re-classified by the Australian Defence Force (his employer both now and at the time of the earlier orders) as operationally deployable. Previously he had been subject to medical discharge. As a consequence, he can apparently be deployed anywhere in Australia, a short notice. The earlier orders do not envisage this possibility;
·X’s mental health has deteriorated. He now has behavioural issues;
·The parties continue to be unable to agree upon a therapist for X;
·X’s wishes have changed and he now wishes to live predominantly with his father and not to be returned to his mother;
·To utilise Family Consultant C’s terminology, he has ample evidence to indicate that it is the mother who is playing psychological games rather than him;
·The mother is submitting the child to some form of physical abuse and has admitted that she accidently hit X;
·The mother has assaulted him at handovers.
In support of his assertion that the existing parenting orders need to be changed, Mr Welter has deposed as follows:
X is only five and his ability to overcome his strong separation anxiety is unlikely to be entirely treated by therapy. The root cause of the issue needs to be addressed which requires a variation to parenting orders.[5]
In this context, Mr Welter has not specifically addressed what he asserts is the root cause of the child’s distress. He has consistently indicated that it will only be found in the context of these proceedings. The mother asserts otherwise. It being her position that this will be a futile task, which will only heighten the child’s level of emotional distress, which stems from the parties’ dysfunctional parenting relationship, which the father is driving.
[5] See affidavit of Mr Welter filed 28 July 2021 at [29].
In her written submissions, Ms Tinning, counsel for the mother, contends that there has not been any changes, in the parties’ circumstances, to justify the revisiting of the comprehensive parenting orders of 12 February 2019, particularly given that it is apparent that the orders were made in the recognition that they would change in light of X’s advancing maturity.
Essentially, it is Ms Tinning’s position that the greatest threat to X’s emotional security is the acrimonious relationship between his parents, which was the most significant feature of the earlier proceedings and remains so. She submits as follows:
It is submitted that issues arising from the poor co-parenting relationship between the parties are not a new or changed circumstance. It is foreseeable that subsequent to the final orders, the parties would encounter ongoing difficulties in communicating with each other and discussing, negotiating and resolving arrangements regarding X’s care.[6]
[6] See written submissions of Ms Welter dated 3 August 2021 at page 5.
Accordingly, Ms Tinning asserts that it would serve no useful purpose for the Court to enquire further into issues regarding the parties’ compromised parenting relationship as it can achieve nothing. It is asserted that it is more probable than not that X’s concerning behaviour, at handovers, is a reaction to the anxiety he feels on being exposed to the father’s antagonistic and coercive behaviour directed towards Ms Welter.
The Independent Children’s Lawyer is to be regarded as a party of equal importance to each of the parents concerned. Pursuant to the provisions of section 68LA of the Act, an Independent Children’s Lawyer is under a statutory obligation to examine all relevant evidence and then advocate the outcome, which they believe will best serve the interests of the children, whom they represent.
Mr Kent has briefed a barrister to appear on his behalf at the recently concluded hearing. The barrister concerned is Ms Lee. Ms Lee has been instructed to support the position as advocated by the mother, namely that the father’s application should be dismissed and, troubling as the current situation is, she contends that it would not serve any useful purpose so far as X is concerned for the parties to enter into a further phase of litigation.
HOW THE COURT DETERMINES A CHILD’S BEST INTERESTS
Part VII of the Act deals with orders relating to children. Before making any particular parenting order, the Court must regard the best interests of any child concerned as the paramount consideration.[7]
[7] Family Law Act 1975 (Cth) s 60CA.
The Act provides a specific list of matters, which the Court must take into account in determining how a child’s best interests are to be served in the making of any parenting order. They are contained in section 60CC.
Section 60CC creates two classes of considerations, which apply to the Court’s determination of how a child’s interests will be best served in proceedings before it. They are designated as primary considerations of which there are two and additional considerations, of which there are some fourteen in number.
The two primary considerations, set out in sections 60CC(2)(a) and (b), are as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[8]
[8] Ibid s 60CC(2)(a)-(b).
Under the current regime, X spends regular periods of time with each of his parents. He lives mainly with his mother, who has been his primary provider of care since the parties separated in his early infancy. He spends regular periods of time with his father on both weekends and weekdays during the school year and for designated periods during school holidays and on special occasions. This arrangement would appear to meet the description of substantial and significant time.[9]
[9] Ibid s 65DAA(3).
Accordingly, at this juncture, it would appear to be the case that X enjoys the benefits of having a meaningful level of relationship with each of his parents. Pursuant to section 60CC(2A) the Court is directed to prioritise protective concerns in respect of a child over considerations relating the quality of parental relationships.
Both parties agree that handovers in relation to X remain problematic. The father has made allegations that the child had a haematoma, which he attributes to the mother’s conduct. There is no independent medical verification of the injury. The Court must make some assessment of the risk this allegation throws up for X and determine whether it warrants a further round of proceedings. In my view, an allegation alone does not satisfy such a test. As Family Consultant C observed, it is open to the parties to make a notification to the Department of Child Protection.
In Deiter & Deiter,[10] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the Court must look to the degree of probability that a harmful event will occur in the future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.[11]
[10] See Deiter & Deiter [2011] FamCAFC 82.
[11] Ibid 82 [61] (Finn, Thackray and Strickland JJ).
As indicated above, the additional considerations are set out in section 60CC(3), which include, pursuant to section 60CC(3)(m) any other fact or circumstance which the Court considers relevant. This is to ensure that the infinite variety of circumstances, arising in the life of each individual child who will be affected by the Court’s order, may be adequately addressed.
Of particular relevance in the context of the current matter, is section 60CC(3)(l), which is directed towards the limiting the exposure if a child to further litigation regarding care arrangements for that child. Considerations of this kind are picked up by how the Court is directed to conduct child-related proceedings and the rule in Rice & Asplund itself, which is a reflection of the paramountcy principle contained in section 60CA.
CHILD RELATED PROCEEDINGS
The Act was significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Through this amendment, the legislature has made significant directions as to how courts, such as this one, are to conduct “child-related proceedings”. These provisions are contained in Division 12A of Part VII of the Act. These provisions apply at all stages of proceedings.
Pursuant to section 69ZN the Court is required to consider a number of principles when proceedings relate to decision making for children. These principles are as follows:
•the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings;
•the court is to actively direct, control and manage the conduct of proceedings;
•proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect;
•proceedings are to be conducted in a way the will promote cooperative and child-focused parenting; and
•proceedings are to be conducted without undue delay, formality and legalism.[12]
[12] Family Law Act 1975 (Cth) s 69ZN.
Pursuant to section 69ZQ, the Court is vested with a number of duties in order to enable it to give effect to these principles. It may:
•decide which issues require full hearing and which may be dismissed summarily;
•decide the order in which issues are determined or what steps should be taken to determine issues;
•in deciding whether or not a particular step is taken, consider the cost implications of such a step;
•use appropriate technology;
•use family dispute resolution or family counselling where appropriate;
•deal with as many aspects of the case as possible on a single occasion and if appropriate without the physical attendance of the parties.[13]
[13] Ibid s 69ZQ.
As a corollary to these duties, the Court is provided with certain powers pursuant to the provisions of section 69ZR. At any time in child related proceedings, it may:
•make a finding of fact;
•determine a matter arising out of proceedings;
•make an order in relation to an issue arising out of proceedings.[14]
[14] Ibid s 69ZR.
These various principles and duties have been collectively described as procedures designed to make proceedings relating to children ‘less adversarial’. In enunciating them, the legislature recognised that unduly protracted litigation is usually not helpful to any child, who is the subject of such litigation. It also certainly does not encourage those who are involved in caring for the child to have a cooperative or collaborative approach towards the child’s parenting.
Accordingly, I am satisfied that I have authority to dismiss Mr Welter’s application without embarking on a full hearing of evidence, if I determine it would be in X’s best interests to do so. The import of Division 12A is the Court is authorised to actively manage cases involving children which come before it.
Litigation regarding the parenting of children is usually expensive, both financially and emotionally. At the conclusion of proceedings, the parties concerned are likely to remain in some form of contact with each other throughout the remainder of their lives, as they will be connected by the shared relationship to their children and quite possibly, with the effluxion of time to their grandchildren.
This renders family law litigation distinct to other forms of litigation, such as an action about a contract or a tort. In the former case, the parties must patch up their relationship, if they can, at the end of the proceedings and attempt to co-parent their children in a constructive and amicable manner. In the latter case, the parties may choose to never see each another again, and so the quality of any future relationship between them is irrelevant.
The principles outlined in Division 12A of the Act recognise that it is in a child’s best interests for those involved in their care to avoid, as far as possible, the deleterious consequences of litigation. Court proceedings are rarely a constructive process, and is often focussed on finding fault and emphasising the failings of the other party, and does little to foster a constructive parenting relationship.
The principles as outlined in section 69ZN of the Act appear to have the following objects, and provide that Courts are directed to:
•discourage unnecessary litigation;
•closely manage the litigation which cannot be avoided, for example: cases that involve an unreasonable risk of harm to the child or matters involving family violence;
•focus the minds of the parties concerned on the potential harm, which can occur to children through litigation as a result of parental conflict; and
•invite the parties to consider the fiscal implications, both private and public, in the conduct of such litigation.[15]
[15] Ibid s 69ZN.
This list is not intended to be an exhaustive one. At the same time, and as mentioned above, the Court is cautioned against overlooking the need to conduct proceedings in a way that will ensure that children are protected from harm arising from neglect, abuse or family violence.[16]
[16] Ibid s 60CC.
The principles seem to be directed to allow the Court to fetter, to some degree, the freedom provided through a traditional adversarial system, which enables parties to investigate every issue that may possibly be of some interest to them, particularly if this untrammelled freedom has implications for the best interests of any child concerned.
The rationale is that proceedings relating to children, concern the interests of a person who is not strictly a party to them – this being the child or children concerned. Consequently, these proceedings can be likened to an inquiry, and as such are not entirely adversarial.
LEGAL PRINCIPLES APPLICABLE TO RICE & ASPLUND
As indicated above, the rule in Rice & Asplund is an expression of the paramountcy principle. Children benefit from finality in arrangements for their care and it is not helpful to their welfare that such arrangements are subject to the prospect of some revision by the Court, particularly if such a revision has the potential to involve emotionally wrenching litigation, which pits parent against parent.
However, the best interest of children must dictate that necessary revision of arrangements for their care can take place if there has been a significant change in their circumstances. Parental conflict, or controversy between parents about care arrangements, of itself, may not be sufficient to justify the revisitation of an otherwise finalised case.
In a case such as the present, it is readily apparent, that Mr Welter and Ms Welter have a significant propensity to disagree with one another. That is not a new development. Rather it has characterised their litigation, since it began, now well over four years ago. It is a circumstance, which is unlikely to change and one which cannot be altered by judicial fiat.
Given that the conflict between the parties is perennial in nature, the Court must carefully consider the change in circumstances that have arisen since they agreed to the orders in February of 2019. There must be, in my view, a substantial change of circumstance to justify a revision of those orders. The potential benefits, likely to accrue to the child concerned, must be balanced against any detriments likely to be occasioned to him from being the subject of litigation that is potentially peripheral to their best interests.
The primary purpose of the rule in Rice & Asplund is to prevent “endless litigation”,[17] and is based on three main pillars. Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”[18].
[17] See Rice & Asplund [1978] FamCA 84 at [7] (Evatt CJ).
[18] See SPS & PLS [2008] FamCAFC 16 at [56] (Warnick J).
Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer, on the basis of the same factual circumstances.[19]
[19] Ibid [58].
Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led. The rule negates this potential outcome.
Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the Court concerning arrangements for their living arrangements. Litigation is not helpful to children.
It is desirable that arrangements for their care be stable and final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in the future.[20]
[20] See CDJ v VAJ (1998) 23 Fam LR 755, 771 [79] ().
In this context, it has been said that the Court should not condone a “perennial football match between parents, who … seek to canvass again and again the question of [parenting arrangements] of a child”[21]The litigation, in this case, has been protracted, expensive and time consuming. The parties’ co-parenting relationship, described as toxic when they separated, has not improved at all.
[21] See SPS & PLS [2008] FamCAFC 16 at [57] (Warnick J), citing In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 (Nygh J).
It is clear from the authorities that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances, to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[22]
[22] See In the Marriage of Bennett (1990) 14 Fam LR 397, 409 (Nicholson CJ, Simpson and Finn JJ).
However, as Warnick J pointed out in SPS & PLS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage. If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.[23]
[23] See SPS & PLS [2008] FamCAFC 16 at [59]-[60] (Warnick J).
Given that the Court will often be called upon to apply the principal expressed in Rice & Asplund at a preliminary stage, without any full exploration of the parties’ concerned evidence, care must be taken with its application at such a stage. It is not a rule which is to be applied formulaically.
Rather, the Court must examine the evidence available, and determine whether, at its highest and without determining its veracity, such evidence demonstrates a sufficient change of circumstance to justify the Court embarking upon a full and exhaustive hearing.
In SPS v PLS, Warnick J put it as follows:
[W]hen the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.[24]
[24] Ibid at [81].
It will frequently be the case that there is much controversy between the parties concerned as to whether there has been a change of circumstances of such moment to justify the Court re-opening proceedings. This issue must be determined within the matrix of Part VII of the Act.
The question essentially being whether it is likely to be in the children’s best interests to allow further litigation. In making this assessment, the Court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation.
In arriving at its decision, the Court must look to the following matters:
•the importance or seriousness of the issues raised, both individually and where necessary collectively;
•the impact that the issues are likely to have on the best interests of the children concerned;
•whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.[25]
[25] See Marsden v Winch (2009) 42 Fam LR 1.
The test is a strong one. The change or fresh circumstances must be of such significance that, once the Court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties.
That is not to say, upon becoming aware of the change of circumstances, the Court reaches the conclusion that there must inevitably be a change in orders previously made. That would be putting the test too strongly. Rather, the change of circumstances must be such that there is a “real likelihood” of a change.[26]
[26] See King & Finneran [2001] FamCA 344 [50] (Collier J).
In SPS & PLS, it was said that the “essential question” for the Court to pose itself concerned the “sufficiency” of the new events, which were said to precipitate the need for a new enquiry. In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps, which might follow from them.[27]
[27] Ibid at [84].
In all these circumstances, I accept that what I must consider, at this stage, is whether the interests of X not being the direct subject of further litigation between his parents, with the concomitant increase of tension and acerbity in their relationship that such litigation would precipitate, is a more powerful consideration, so far as X’s welfare is concerned than to allow Mr Welter’s application to continue.
This issue primarily turns on whether there is a change of circumstances, so far as arrangements for X’s care are concerned, particularly in terms of the time he is currently able to spend with his father. It also turns to whether the issue raised by Mr Welter, in his most recent affidavit, relating to his changed work situation; his desire that there be a further Court initiated Family Report; the allegations of abuse; and the on-going conflict between the parties; is of sufficient moment to justify his application to change X’s primary place of residence continuing.
In Walter & Walter,[28] the Court in its discussion of this issue noted with approval the reasons of the Full Court in Marsden & Winch:[29]
Nevertheless, there are significant changes that occur which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.[30]
[28] See Walter & Walter [2016] FamCAFC 56.
[29] See Marsden & Winch (2009) 42 Fam LR 1 at [51] (Bryant CJ, Finn and Cronin JJ).
[30] Walter & Walter [2016] FamCAFC 56 at [49] (Ainslie-Wallace J), quoting Marsden & Winch (2009) 42 Fam LR 1 at [50] (Bryant CJ, Finn and Cronin JJ).
Further, Ainslie-Wallace J went on to say:
Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.[31]
[31] Walter & Walter [2016] FamCAFC 56 at [51] (Ainslie-Wallace J).
DISCUSSION
As the Full Court remarked in Walter & Walter, the decision to embark upon a fresh round of proceedings, following the conclusion of earlier ones, must be an idiosyncratic one determined by the Court’s consideration of all the prevailing circumstances.[32] It is clearly not a decision to be made lightly, particularly if it is not practicable for the Court to canvas evidence in the context of a full hearing involving cross-examination.
[32] Ibid at [49] (Ainslie-Wallace J), quoting Marsden & Winch (2009) 42 Fam LR 1 at [50] (Bryant CJ, Finn and Cronin JJ).
In this case, the earlier orders of February 2019 were made in circumstances in which a great deal of material had been filed, which included a lengthy family assessment report. In addition, the child concerned was represented independently of his parents. All the parties were represented. Accordingly, in my view, it is axiomatic that the orders agreed upon then were ostensibly recognised by all concerned as being in X’s best interests.
This was certainly my view, when I formally made the orders. The orders reflected the age of X, at the time, and provided a pathway for him to incrementally extend his time with his father, once he began to attend primary school. I was satisfied that it was calculated to be in X’s best interests, given his tender years, for him to remain in the predominant care of his mother, who had demonstrably been his primary provider of care, up to that time but also to have a meaningful level of relationship with his father, who undoubtedly loved him.
However, at the time of the final hearing, it was also readily apparent to me that future arrangements for X’s care would continue to be problematic, given the nature of the parties’ parenting relationship with one another, which all concerned denoted with the epithet toxic.
These issues were remarked upon by Ms B in her family assessment report. She also noted some concerns about aspects of Mr Welter’s personality, which indicated that it was not likely that the problems in the parties’ parenting relationship would be easily resolved. In this regard, aspects of her report have proven to be prophetic but not unexpected.
The orders, in my view, reflected these likely problems and endeavoured, as best they could, to provide a clear pathway for X’s care into his primary school and later years and to minimise the parties’ direct interactions with one another. Clearly, the orders did not envisage any remarkable change in respect of the parties’ attitude to one another and, in this sense, nothing has changed. Rather, the orders reflected the best feasible outcome in a bad situation – X continued to have a relationship, with each of his parents, in a highly conflicted environment.
In my view, nothing Mr Welter has raised demonstrates any significant change in this parlous situation. The next issue arising is whether it is likely that the proceeding will result in a significant change in care arrangements for X and a resulting variation in the February 2019 orders.
As was the case in the earlier proceedings, each party asserts that it is the other parent who is driving the endemic conflict between them. That X should be protected from this conflict is a given. A more difficult question is how this can be achieved. As I remarked to the parties, during the hearing of the recent application, the obvious mechanism to achieve such an outcome is that the child lives exclusively with one party, rather than the other.
In terms of the objects of the Act, particularly the child’s entitlement to maintain a viable parenting relationship with each parent, such an outcome may have extremely deleterious implications for X and the service of his best interests. In any event, at this stage, Ms Welter does not advocate such an outcome, seeking rather to persist with the current regime, problematic though it is.
From her perspective, the best solution for the current level of emotional distress suffered by X, at handovers, is for the parties to engage a suitably qualified and agreed therapist for him, which she asserts has been done by mutual agreement between the parties. In these circumstances, it remains her position that the continuance of the father’s application can have no measurable benefits for X and only negative ones, as it will exacerbate rather than reduce tensions between his parents.
The father’s position has changed throughout the case. It is only extremely recently, once the mother in fact had agitated the potential application of Rice & Asplund, that he has formally made application that X should live with him. In this context, the Court must make some assessment of the likelihood that there will be such a significant change in care arrangements. Central to such an assessment must be the gravity of the child abuse and neglect allegations he has made.
Mr Welter’s original position was that the Court should order a Family Report to ensure that X received the treatment which he required to deal with his emotional distress. Given she had a proposal for X to receive therapy, Ms Welter contends that it is open to the Court to conclude, as both she and Family Consultant C have done, that Mr Welter commenced the proceedings in order to satisfy aspects of his own personality, namely a desire to continue to control her.
As previously indicated, it was a consistent theme of the earlier proceedings that each parent argued the other was a compromised parent, who represented a significant risk for X. The mother’s case being that the father makes pointed comments about her at handovers and is fixated with her; whilst the father’s case is that the mother has alcohol dependency issues; has bruised X; and refused to communicate effectively with him about arrangements for X’s care.
In respect of the haematoma issue, there is no evidence to support the father’s allegation apart from his assertion of it. The Department of Child Protection has elected not to involve itself in the matter. The allegations of alcohol abuse were raised in the earlier proceedings. The mother concedes that she lost her driving licence, for drink-driving, prior to meeting the father.
On my assessment, the various matters raised by the father are unlikely to result in the final orders which he currently seeks, particularly given the long-standing nature of the prior caring regime, which was posited on the fact that Ms Welter had been X’s primary carer. In addition, I consider that the stage at which Mr Welter has made his application is consistent with the mother’s characterisation of him, namely he wishes to perpetuate the litigation as a deliberate means of undermining her, and her relationship with X.
In all these circumstances, in my view, it is not beyond the bounds of possibility that the Court will find that one potential mechanism to reduce the stress under which X currently resides is to reduce his time with his father rather than to remove him from his mother. I note again that the mother is not formally seeking such an outcome and I am not in a position to ascertain who of the parties is more responsible than the other for driving the unacceptable conflict between them or, in other terms, to utilise Family Consultant C’s terminology who is playing games with whom.
The ostensible tenor of Mr Welter’s various applications has been that he is only intent on getting to the bottom of X’s various issues so that they can be rectified. If this is true, it is a laudable aspiration. The mother’s view is that X’s problems arise as a consequence of the father’s attitude towards her and the child’s response to the parental conflict to which he has been exposed and the father is disingenuous when he seeks further court intervention.
That there is a significant and on-going level of conflict cannot be doubted. Similarly, that exposure to such conflict is deleterious to X’s emotional welfare also appears axiomatic. In these circumstances, other than excising X from the conflict, there appears no obvious solution to the issue other than the parties themselves attempting to remedy the defects in their relationship. In my view, the Court itself has limited, if any, options in this regard.
Given the limited extent of the evidence regarding Mr Welter’s allegations of physical abuse of the child, and my view that the major problems so far as X’s emotional well-being is concerned is the conflicted relationship of his parents, which is both long-standing and endemic, the question arises as to what purpose a further Family Report will serve, other than to prolong the litigation and disputation between the parties.
A Family Report will potentially provide more information for the Court. However, the Court must consider what will be the emotional cost, for X, of obtaining such a report. Further, this issue must be referenced to the possibility or otherwise of further proceedings resulting in any practical change in care arrangements for X.
Family Consultant C was firmly of the view that a further Family Report was not warranted. It was her recommendation that the parties attempt to rectify the difficulties between them at handover through a process of community based mediation and the engagement of a psychologist to provide support for X.
In all these circumstances, I am not of the view that any fresh issue has arisen in this case, since the orders of February 2019, of such moment to justify the re-opening of the proceedings. I can see no realistic prospect that Mr Welter’s recently filed application has any realistic prospect of success. As such, it cannot be justified when consideration is given to the potential detriment that further litigation will constitute for X.
I acknowledge that the ethos of the Court is that it is to be a helping court. It is sad and confronting that the relationship between the parties has progressed so little since their separation. However, it is beyond the both the Court’s remit and capacity to repair this relationship.
In all the circumstances, I am satisfied that, unsatisfactory as the parties’ relationship as parents continues to be, the orders on which they agreed on 12 February 2019 continue to be the ones best calculated to serve X’s best interests. There is no factor of sufficient moment to justify those orders being revisited, particularly as the prospect of there being any major change to them is assessed to be minimal.
As such, to allow the proceedings to continue would be contrary to the paramountcy principle enshrined in section 60CA and not in keeping with the manner in which the Court is directed to conduct child-related proceedings pursuant to the provisions of Division 12A of the Act. For all of these reasons, all outstanding applications are dismissed, and the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 15 September 2021
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